47 Neb. 886 | Neb. | 1896
The defendants in error brought this action against the railway company to recover damages an account of cattle belonging to them, killed and injured by a train of the railway company. The petition, while it is in one count, really alleges, or attempts to allege, three grounds of recovery: Eirst, that a gate on one of the fences along the right of way was insufficient and negligently permitted to be out of repair, and that by reason of •those facts the cattle got upon the right of wav; second, that after they got upon the right of way, their injury resulted from the careless operation of the train; third, that the railway company,
Many assignments of error relate to rulings on the admission of evidence and to the refusal of instructions with regard to the character of the gate and the duty and liability of the railway company concerning the gate and flowing from its. condition. The railway company is not, however* in any position to complain of these rulings. The statutes on the subject are found in Compiled Statutes, chapter 72, article 1, sections 1 and 2. The court, after stating- the issues, stated to the jury the substance of the statute, and then .charged the jury that the duty was imposed by statute of erecting and maintaining gates, opens* or bars at private crossings, only with regard to. adjoining proprietors, and that if the cattle were upon the premises of an adjoining proprietor* without his consent, and escaped therefrom upon the right of way without negligence of the defendant, and were killed without its negligence, there could be no recovery. The evidence was uncontradicted that the cáttle of the plaintiffs, about 340 in number, were in a corral north of the railway and west of the land of one Wallen; that they escaped from the corral upon the land of Wallen*
It is quite clear under the instructions of the court that the verdict turned upon the negligence of the railway company in operating its train, whereby the cattle were killed and injured after they came upon the right of way. On this branch of the case the allegations of the petition are that, the defendant, “by its agents and employes, while running at a high rate of speed, carelessly and negligently, and without using due caution, ran the engine and train of cars connected therewith and attached thereto over and upon the cattle of these plaintiffs; * * that the said defendant carelessly and negligently, by its employes and ser
Reversed and remanded.